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[Senate  Document,  No.  9.] 


[Introduced  by  Mr.  Woodpin  — Read  the  first  time  and 
passed.  Ordered  to  be  printed,  and  referred  to  the  Com- 
mittee on  Internal  Improvements.] 


A  BILL 

To  incorporate  the  North  Carolina  and  Western  Railroad 
Company. 

I.  Be  it  enacted  by  the  General  Assembly  of  the  State  of 

2  North  Carolina,  and  it  is  hereby  enacted  by  the  autho- 

3  rity  of  the  same,  That,  for  the  purpose  of  effecting  a 

4  railroad  communication  between. the  North  Carolina 

5  Railroad,  now  being  built,   and  the  valley  of  the  Mis- 

6  sissippi,  the  formation  of  a  corporate  company,  with  a 

7  capital  stock  of  three  millions  of  dollars,  is  hereby  au- 

8  thorised,  to  be  called  the  North  Carolina  and  Western 

9  Railroad  Company ;  and,'  when  formed  in  compliance 

10  with  the  conditions  hereinafter  prescribed,  to   have  a 

11  corporate  existence  as  a  body  politic  for   the  term^  of 

12  ninety-nine  years. 

II.  Be  it   further  enacted,  That  the  said  company  be, 

2  and  the  same  is  hereby  authorised  to  construct  a  railroad 

3  from  any  point  on  the  North  Carolina  railroad  that  they 

4  may  choose,  to  any  point  on  the  Tennessee  State  line, 

5  or  to  any  point  on  the  Little  Tennessee  River  in  Macon 

6  county,  that  they  may  determine  on,  after  the  organiza- 

7  tion  of  the  company,  and  a  survey  under  their  direction. 

III.  Be  it  further  enacted,  That,  for  the  purpose  of  crea- 

2  ting  the  capital  stock  of  said  company,  the  following 

3  persons  be,  and  the  same  are  hereby,  appointed  commis- 


X 


tH«VU 


48 


4  sioners,  namely:  Hamilton  C.  Jones  of  Salisbury,  Jas» 

5  W.  Osborn,  of  Charlotte,  of  States- 

6  ville,  of  Newton,  Tod  R.  Caldwell 

7  of  Morganton,  Elisha  P.  Miller  of  Caldwell,  William  H„ 

8  Miller  of  Rutherford,  Haywood  W.  Guion  of  Lincolnton, 

9  William  McCarson  of  Marion,  David  B.  Miller  of  Hen- 

10  dersonville,  James  W.  Patton  of  Asheville,  A.  E.  Bain 

11  of  Madison,  J.  W.  McElroy  of  Burnsville,  William  John- 

12  ston  of  Waynesville,  and  Joab  L.  Moore  of  Franklin,  in 

13  Macon  county.     That  it  shall  be  lawful  to  open  books 

14  in  the  town  of  Salisbury  under  the  direction  of  Burton 

15  Craig,  Hamilton  C.  Jones,  George  W.  Brower,  Horace 

16  L.  Robards,  Nathaniel  Boy  den,  and  Hon.  D.  F.  Cald- 

17  well,  or  any  three  of  them.     At  Charlotte  under  the  di- 

18  rection  of  Joseph   H.  Wilson,   James  W.   Osborn,  N. 

19  Hutchinson,    John   Irwin,  Bailey  Oats,  and  Green  W. 

20  Caldwell,  or  any  three  of  them.     At  Statesville  under 

21  the  direction  of  Andrew  Allison,  George  F.  Davidson, 

22  Robt.  Cowan,  Walter  P.  Caldwell,  Dr.  Parks,  Samuel  R. 

23  Bell,  J.  W.  Stockton  and  J.  K.  Nesbit,  or  any  three  of 

24  them.     In  the  town  of  Newton  under  the  direction  of 

25  Jonas  Borst,    Lock  McCocle,  Cline,  Wilkey 

26  Henry  Robeson,  or  any  three  of  them.     In  the  town  of 

27  Lincolton  under  the  direction  of  H.  W.  Guion,  John 

28  F,  Hoke,  Taylor  Alexander,   Benjamin  Johnston,  Leo- 

29  nard  Thompson,  Jacob  Ramsour,  C.  C.  Henderson,  L. 
SO  D.  Chiles  and  James  A.  Caldwell  or  any  three  of  them. 

31  In  Rutherfordton   under   the  direction  of  William  M. 

32  Shipp,  Gen.  Edmnud  Bryan,  William  H.  Miller,  H.  D. 

33  Carrier,  Wilkins,  J.   G.   Bynum,  James  M.  Webb,  Dr. 

34  John  Cray  ton,  Dr.  J.  C.  Calloway,  and  Dr.  John  Mc- 

35  Entire,  or  any  three   of  them.     In   the   town  of  Boon 

36  under  the  direction  of  Jordan  Counsel,  Jonathan  Hor- 

37  ton,  Reuben  Mast,  and  John  Morris  or  any  three  of  them. 

38  In  the  town  of  Morganton  under  the  direction  of  I.  T. 
36  Avery,  James  C.  Smith,  Robert  C.  Pearson,  Thomas 
40  Walton,  William  F.   McKesson,  T.  R.  Caldwell,  W, 


W*Vi 


! 


49 


41  &  Erwin  and  Dr.  VV.  McRea,  or  any  three  of  them,    in 

42  the  town  of  Lenoir,  under  the  direction  of  James  Har- 

43  per,   sen.,  L.  .  M.   Tuttle,    Walter   Lenoir,  William  B. 

44  Dola,  Samuel  F.  Patterson  and  Cornelius  Clark,  or  any 

45  three  of  them.     In  the  town  of  Marion  under  the  direc- 

46  tion  of  W.  L.  Gill,  A,  Higgins,  Jason  H.  Whitson,  Alna 

47  Burgin,  William  M.  Carson,  C.  P.  Davis  and  Dr.  S.  A. 

48  Erwin  or  any  three  of  them.     In   the  town  of  Shelby 

49  under  the  direction  of 

50  or  any  three  of  them.     In  the 

51  town  of  Asheville  under  the  direction  of  John  Reynolds., 

52  James  M.  Smith,  B.  J.  Smith,  M.  Patton,  W.  D.  Ran- 

53  kin,  A.  B.  Chunn,  J.  W.  Patton,  William  Williams,  A. 

54  T.  Summey,  J.  W.  Woodfin,  James  M.  Edney,  Hugh 

55  Johnston,  J.  B.   Sawyer,   Augustus  S.   Merriman  and 

56  Daniel  Reynolds,  or  any  three  or  more  of  them.     In  the 

57  town  of  Hendersonville   under  the   direction  of  David 

58  B.  Miller,  Joseph  Dunlap>  Benjamin  Posey,  James  Brit- 

59  tain,   William   Bryson,   Dr.    Whither,  Andrew  Miller, 

60  John  Baxter  and  M.  Patton,  or  any  three  of  them.     In 

61  the  town  of   Burns ville   under   the   direction  of  M.  P. 

62  Pendfeam,  J.   W.   McElroy,  Joseph  Sheppard,   J.  W. 

63  Garland  and  John  Stradley,  or  any  tffi-ee  of  them.     In 

64  Madison  at  Smith's  and  Baird's  under  the  direction  of 

65  A.  E.  Baird,  John  Peck,    David  Farnsworth,  Hezekiah 

66  Bernard,  Job  Ramsey,  and  J.  J.  Gudger,  or  any  three  of 

67  them.      In    Waynesville   under   the   direction   of  W. 

68  Welch,  W.  Johnson,  Samuel  ;  Fitzgerald,  E.  B.  Herren, 

69  John  S.Smith,  and  A.  T.  Murray,  or  any  three  of  them. 

70  In  the  town  of  Franklin  under  the  direction  of  Jesse  R. 

71  Tiler,  Joab  F.  Moore,  Dr.  H.  G.  Woodfin,  D.  R.  Low- 

72  ery,  Stephen  Munday  and  IN.  G.  Alman  or  any  three 

73  of  them.     Whose  duty  it  shall  be  to  direct  the  opening 

74  of  books  for   subscription   of  stock,  at  such  times  and 

75  places,  and  under  the  direction  of  such  persons,  as  they 

76  or  a  majority  of  them  may   deem  proper,  and  the  said 

77  commissioners  shall  have  power  to  appoint  a  chairman 


50 


78  of  their   body,   treasurer,   and  all  other  officers,  nnd  to 

79  sue  for,  and  recover  all  sums  of  money  that  ought,  un- 

80  der  this  act,  to  be  received  by  them. 

IV.    Be  it  further  enacted,  That  all  persons  who  are, 

2  or  may  hereafter    be  authorized  to  open  books  for  sub- 

3  Ascription  of  stock  by  the  commissioners  herein  appoint- 

4  ed  for  that  purpose,  shall  open  said  books  at  any  time 

5  after  the  ratification  of  this  act,  twenty  days'  previous 

6  notice  being  given  in  some  one  or  more  of  the  public 

7  newspapers  in  this  State ;    and   that  the   said  books, 

8  when  opened,  shall  be  kept  open  for  the  space  of  thirty 

9  days  at  least,  and  as  long  thereafter  as  the  commissioners 

10  first  above  named  shall  direct ;  and  that  all  subscription  of 

11  stock  shall  be  in  shares  of  one  hundred  dollars,  the  sub- 

12  scriber  paying,  at  the  time  of  making  such  subscription, 

13  the  sum  of  five  dollars  on  each  share  thus  subscribed, 

14  to  the  person  or  persons  authorized  to  receive  such  sub- 

15  scription  ;  and,   in  case  of  failure  to  pay  said  sum,  all 

16  such  subscriptions   shall  be  void,  if  the  commissioners 

17  choose  to  declare  it,  or  they  may  direct  it  to  be  recovered 
IS  by  suit  or  otherwise  ;  and,  upon  closing   the  books,  all 

19  such  sums  as  shall  have  been  thus  received  of  subscribers, 

20  on  the  first  cash  instalment,  shall  be  paid  ov^r  to  the 

21  general  comnftssioners  herein  before  named  by  the  per- 

22  sons  receiving  them;  and  for  failure  thereof,  such  person 

23  or  persons  shall  be  personally  liable  to  said  general  com- 

24  missioners  before  the  organization  of  said  company,  and 

25  to  the  company  itself  after  its  organization,  to  be  recov- 

26  ered  in  the  Superior  Court  of  law  within  this  State,  in 

27  thecounty  where  such  delinquent  resides,  or,  if  he  reside 

28  in  any  other  State,  then  in  any  court  in  such  State  hav- 

29  ing  competent  jurisdiction.     Then  thesaid  general  com- 

30  missioners  shall  have  power  to  call  on,  and  require,  all 

31  persons  empowered  to  receive  subscriptions  of  stock,  at 

32  any  time,  and  from  time  to  time,  as  a  majority  of  them 

33  may  think  proper,  to  make  a  return  of  the  stock  by  them 

34  respectively  received,  and  to  make  payments  of^all  sums 


51 


35  made  by  the  subscribers  ;  that  all  persons  receiving  sub- 

36  scriptions  of   stock  shall  pass  a  receipt  to  the  subscriber 

37  or  subscribers  for  the  payment  of  the  first  instalment, 

38  as  heretofore  required  to  be  paid  ;  and,  upon  their  settle- 

39  merit  with  said  general  commissioners  as  aforesaid,  it  shall 

40  be  the  duty  of  the  said  general  commissioners,   in  like 

41  manner,  to  pass  their  receipt  for  all  sums  thus  received, 

42  to  the  person  from  whom  received,  and  such  receipts  shall 

43  be  taken  and  held  to  be  good  and  sufficient  vouchers  for 

44  the  persons  holding  the  same, 

V.  Be  it  further  enacted,  That  it  shall  be  the  duty  of  said 

2  general  commissioners  to  direct  and  authorise  the  keep. 

3  ing  open  of  books  for  the  subscription  of  stock  in  the 

4  manner  above  described,  until  the  sum  of  one  million  of 

5  dollars  shall  have  been  subscribed  to  the  capital  stock  of 

6  said  company ;  and  as  soon  as  the  sum  of  one  million 
T.o.t  dollars  shall  have  been  subscribed,  and  the  first  in- 

8  stalment  of  five  dollars  per  share  on  said  stock  shall  have 

9  been  received  by  the  general  commissioners,  said  com. 

10  pany  shall  be  regarded  as  formed  ;   and  the   said  com- 

11  missioners  or  a  majority  of  them,  shall   sign  and  seal 

12  a  duplicate  declaration  to  that  effect,  with  the  names 

13  of  the   subscribers  appended,  and  cause  one  of  the  said 

14  duplicates  to  be  deposited  in  the  office  of  the  Secretary 

15  of  State;    and  thenceforth,  from  the  closing  of  the  books 

16  of  subscription  as  aforesaid,  the  said  subscribers  to  the 

17  stock  shall  form  one  body  politic  and  corporate,  in  deed 

18  and  in  law,  by  the  name  and  style  of  the  North  Caro- 

19  Una  and   Western   Railroad  Company. 

VI.  Be   it  further  enacted,     That,  whenever  the  sum 

2  ot   one  million  of  dollars  shall  be  subscribed,  in  manner 

3  aforesaid,  the  subscribers,  their  executors,  administrators 

4  and   assigns,  shall  be,  and  they  are   hereby  declared  to 

5  be,  incorporated  into  a  company  by  the  name  and  style  of 

6  "  the  North  Carolina  and  Western  Railroad   Company; 


52 


7  and  by  that  name  shall  be  capable,  in  law  and  equity,  of 

8  purchasing,  holding-,  leasing  and  conveying  estates,  real, 

9  personal  and  mixed,  and  of  acquiring  the  same  by  gift 

10  or  devise,  so  far  as  shall  be  necessary  for  the  purposes 

11  embraced  within  the  scope,  object  and  intent  of  this  char- 

12  ter,  and  no  further;  and  shall  have  perpetual  succession ; 

13  and  by  their  corporate  name  may  sue  and  be  sued,  plead 

14  and  be  impleaded  in  any  court  of  law  and  equity  in  the 

15  State  of  North  Carolina;  and  may  have  and  use  a  com- 

16  mon  seal,  which  they  may  alter  and  renew  at  pleasure  ; 

17  and  may  have  and  enjoy  all  other  rights  and  immuni- 

18  ties  which  other   corporate  bodies  may  and  of  right  do 

19  exercise;    and  may  make  all  such  by-laws,  rules  and 

20  regulations  as  are  necessary  for  the  government  of  the 

21  corporation,  or  effecting  the  object  for  which  it  is  cre- 

22  ated,  not  inconsistent  with  the  constitution  and  laws  of 

23  the  United  States  or  of  the  State  of  North  Carolina. 

VII.  Be  it  further  enacted,  That  notice  of  process  upon 

2  the  principal  agents  of  said  company,  or  the  president  or 

3  directors,  or  any  of  them,  shall  be  deemed  and  taken  to 

4  be  due  and  lawful   notice  of  service  ot  such  process 

5  upon  the  company,  so  as  to  bring  it  before  any.  Court 

6  within  the  State  of  North  Carolina. 

VIII.  Be  it  further  enacted,   That,  as  soon  as  the  sum  of 

2  one  million  of  dollars  shall   have  been   subscribed,  in 

3  manner  aforesaid,  it  shall  be  the  duty  of  the  general 
i    commissioners,  appointed  herein,  to  appoint  a  time  for 

5  the  stockholders  to  meet  at  Asheville,  which  they  shall 

6  cause  to  be  previously  published,  for  the  space  of  thirty 

7  days,  in  one  or  more  newspapers,  as  they  may  deem  pro- 
Si  per  ;  at  which  time  and  place,  the  said  stockholders,  in 
9  person  or  proxy,  shall  proceed  to  elect  twelve  directors 

10  of  the  company,  and  to  enact   all   such  by-laws,  rules 

11  and  regulations,  as  may  be  necessary  for  the  govern- 
1-2  mentof  the  corporation  and  the  transaction  of  its  busi- 
13  ness.     The  persons   elected  directors  at  this  meeting, 


53 


14  shall  serve  such  a  period  as  the  stockholders  may  cli- 
'15  rect;  and  at  this  meeting,  the  stockholders  shall  fix  on 
18   the  place  or  places,  where  the  subsequent  election  of  di- 

17  rectors  shall  be  held  ;  and  such  elections  shall  thereafter 

18  be  annually  made  ;    but,  if   the  day  of    the  annual 

19  election  should  pass  without  any  election  of  directors,, 

20  the  corporation   shall  not  thereby  be  dissolved,  but  it 

21  shall  be  lawful  on  any  other  day  to  hold  and  make  such 

22  election  in  such  manner  as  may  be  prescribed  by  the 

23  rule's  or  by-laws  of  the  corporation. 

IX.  Be  it  further  enacted,  That  the  affairs  of  the  com- 
2  pany  shall  be  managed  and  directed  by  a  general  board, 
.3  to  consist  of  twelve  directors,  to  be  elected  by  the  stock- 

4  holders  from   among   their  number,  at   the  first  and 

5  subsequent  general  annual  meetings,  as  prescribe^  in  the 

6  eighth  section  of  this  act. 

X.  Be  it  further  enacted,  That  the  election  of  directors 

2  shall  be  by  ballot,  each  stockholder  having  as  many  votes 

3  as  he  has  shares  in  the  stock  of  said  company;   and 

4  the  person  having  a  majority  of  all  .the  votes  polled, 

5  shall  be  considered  as  duly  elected :   Provided,   That 

6  said  company  may  fix  any  other  scale  of  voting  to  go- 
'7  vem  all  subsequent  elections. 

XL    Be  it  further  enacted,   That   the  president  of  the 

2  company  shall  be  elected  by  the  directors  from  among 

3  their  own  number,  in  such  manner  as  the  regulations 

4  of  the  company  shall  prescribe. 

XII.  Be  it  further  enacted,   That,  at  the  first  general 

2  meeting  of  the  stockholders,  directed  to  be  called  under 

3  section  eighth  of  this  act,  a  majority  of  all  the  shares 

4  subscribed  shall  be  represented   before   proceeding  to 

5  business ;  and,  if  a  sufficient  number  do  not  appear  on 

6  the  day  appointed,   those  who  do  attend  shall   have 


54 


7  power  to  adjourn  from  time  to  time,  until  a  regular 

8  meeting  shall  be  thus  formed;   and  at  such  meeting 

I  9  the  stockholders  may  provide  by  a  by-law,  as  to  the 
10  number  of  stockholders  and  the  amount  of  stock  to  be 

II  held  by  them,  which  shall  constitute  a  quorum  for  the 

12  transaction  of  business  at  all  subsequent  regular  or  occa- 

13  sional  meetings  of  stockholders  and  directors. 

XIII.  Be  it  further  enacted,  That  at  all  elections,  and 

2  upon  all  votes  taken,  in  any  general   meeting  of  the 

3  stockholders,  upon  any  by  law  or  any  of  the  affairs  of 

4  said  company,  each  share  of  stock  shall  be  entitled  to 

5  one  vote,  and  that  any  stockholder  in  said  company 
C^may  vote  by  proxy ;  and  proxies  may  be  verified  in  such 
7  manner  as  the  stockholders  by  law  may  prescribe. 

XIV.  Be   it  further  enacted,  That   the   general   com- 

2  missioners  shall  make  their  return  of  the  shares  of  stock 

3  subscribed  for,  at  the   first  general   meeting  of  stock- 

4  holders,  and  pay  over  to  the  directors    elected  at  said 

5  meeting,  or  their  authorized  agent,    all  sums  of  money 

6  received  from  subscribers  ;  and,  for  failure  thereof,  shall 

7  be  liable  to  said  company,  to  be  recovered  at  the  suit  of 

8  said  company,  in  any  of  the  Superior  Courts  of  law   in 

9  this  State,  within  the  county  where  such  delinquent  or 

10  delinquents  may  reside,  and  in  like  manner  from  said 

11  delinquent  or  delinquents'  executors  or  administrators, 

12  in  case  of  his  or  her  death. 

XV.  Be  it  further  enacted,  That  the  board  of  directors 

2  may  fill  all  vacancies  which  may  occur  in  it  during  the 

3  period  lor  which  they  have  been  elected,  and,  in  the  ab- 

4  sence  of  the  president,  may  appoint  one  pro  tempore, 

5  from  among  their  number. 

XVI.  Be  it  further  enacted,  That  all  contracts  Degree- 
s' mentSj  authenticated  by  the  president  and  secretary  of 


55 

3  the  board  of  directors,  shall  be  binding  on  the  company 

4  without  a  seal,  or  such  a  mode  of  authentication  may  b$ 

5  used  as  the  company,  by  their  by-laws,  may  adopt. 

XVII.  Be  it  further  enacted,  That  the  company    shalf 

2  have  power  and  may  proceed  to  construct,  as  speedily 

3  as  possible,  a  railroad  with  one  or  more  tracks,  to  be 

4  used  with  steam  power,  which  may  be  extended  from 

5  such  point   on  the  North  Carolina    railroad,    as    the 

6  company  hereby  incorporated    shall   fix  upon,  to  such 

7  point  on  the  Tennessee    State  line,  or  Tennessee  river, 

8  in  Macon  county,  as  the  said  company  shall  determine; 

9  and  skid  company  may  use  any  section  or  part  of  said 

10  road,  made  by  them,  before  the  whole  of  said   road  is 

11  completed. 

XVIII.  Be  it  further  enacted,   That  the  said  company 

2  shall  have  the  exclusive  right  of  conveyance  or  transpor- 

3  Ration  of  persons,  goods,  merchandise  and  produce  over 

4  the  said  railroad,  to  be  by  them  constructed,  at   such 

5  charges  as  may  be  fixed  on  by  a  majority  of  said  com- 

6  pany. 

XIX.  Be  it  further  enacted,  That  the  said  company  may,7 

2  when  they  see  fit,  farm  out  their  right  of  transportation 

3  over  said  railroad,  subject  to  the  rules  above  mentioned  ; 

4  and  the  said  company,  and  every  one  who  may  have  re- 

5  ceived  from  them  the   right  of   transportation  of  goods, 

6  wares  and   merchandise  over  the  said  railroad,  shall  be 

7  deemed  and  taken  to  be  a  common  carrier,  as  respects 

8  all  goods,  wares,  produce  and  merchandise  entrusted  to 

9  them  for  transportation. 

HXX.  Be  it  further  enacted,  That  the  board  of  directors 

2  may  call  for  the  payment   of  the   sums  subscribed   as 

3  stock  in  said  company,  in  such  instalments  as  thein- 

4  terest  of  said  company  may,  in  their  opinion,  require  ; 


56 


5  the  call  for  each  payment  shall  be  published  in  one  or 

6  more  newspapers  published  in   this   State,  for  at  least 

7  one    month    before   the    day    of  payment ;    and,  on 

8  failure  of  any  stockholder  to  pay  each  instalment,   as 
9-  thus  required,  the  directors  may  sell,  at  public  auction, 

10  on  a  previous  notice  of  ten  days,  for  cash,   all  the  stock 

11  subscribed  for  in  said  company,  by   such   stockholder, 

12  and  convey  the  same  to  the  purchaser  at  said  sale  ;  and 

13  if  the  said  sale  of  stock  do  not  produce  a  sum  sufficient 

14  to  pay  off  the  incidental  expenses  of  said  sale,  and  the 

15  entire  amount,  due  to  said  company,  for  such  subscrip- 

16  tion  of  stock,    then,  and  in  that  case,  the  whole  of  such 

17  balance  shall   be  held  as  due  at  once  to  said  company, 

18  and  may  be   recovered  of  such  stockholder  or  his  ex- 

19  ecutors,  administrators   or   assigns,  at   the   suit  of  said 

20  company,  either  by  summary  motion  in  any  Court  of  Su- 

21  perior  jurisdiction  in  the  county  where  the  delinquent 

22  resides,  on  a  previous  notice  of  ten  days  to  such  delin- 

23  quent  subscriber,  or   by  action   of  assumpsit  in  any 

24  Court  of  competent  jurisdiction,  or  by  a  warrant  before 

25  a  Justice  of  the  Peace,  when  the  sum  does  not  exceed 

26  one  hundred  dollars ;  and  in  case  of  the  assignment  of 

27  stock,  before  the  whole  amount  has  been  paid  to   the 

28  company,  then  for  all  sums  due  on  such  stock,  both  the 
,29  original    subscribers,  and  the  first  and  ail   subsequent 

30  assignees,  shall  be  liable  to  the  company,  and  the  same 

31  may  be  recovered  as  above  described. 

XXI.  Be  it  further  enacted^  That  the  debt^of  stockhol- 

2  ders,  due  to  the   company  for  stock  therein,   either  as 

3  original  proprietor,  or  as  first  or  subsequent   assignee, 

4  shall  be  considered  as  of  equal  dignity  with  judgments 

5  in  the  distribution  of  assets  of  a  deceased   stockholder, 

6  by  his  personal  representatives. 

XXII.  Be  it  further  enacted,   That  said  company  shall 

2  issue  certificates  of  stock  to  its  members  ;  and  said  stock 

3  may  be  transferred  in  such  manner  and  form  as  may  be 

4  directed  by  the  by-laws  of  .the  company. 


57 

XXIII.  Be  it  further  enacted,  That  the  said  company 
H  may  at  any  time,  increase  its  capital  to  a  sum  sufficient 

3  to  complete  said  road,  not  exceeding  one  million  of  dol- 

4  lars,  by  opening  books  for  the  subscription  of  stock,  or 

5  by  selling  such  new  stock,   or  by  borrowing  money  on 

6  the  credit  of  the  company,    and  on  the  mortgage  of  its 

7  charter  and  works,  and  the  manner  in  which  the  same 

8  shall  be  done,  in  either  case,  shall  be  prescribed  by  the 

9  stockholders  in  a  general  meeting. 

XXIV.  Be  it  further  enacted,   That  the  board  of  direc- 

2  tors  shall,  once  in  every  year  at  least,  make  a  full  report 

3  on  the  state  of  the  company  and  its  affairs  to  a  general 

4  meeting  of  the  stockholders,  and  oftener  if  required  by 

5  a  by-law ;  and  shall  have  power  to  call  a  general  meet- 

6  ing  of  the  stockholders,  when  the  board  may  deem  it 

7  expedient ;  and  the  company  may  provide,  by  their  by- 

8  laws,  for  occasional  meetings  being  called,  and  prescribe 

9  the  mode  thereof. 

XXV.  Be  it  further   enacted,  That  the  said   company 

2  may  purchase.,   have  and  hold,  in  fee,  or  for  a  term  of 

3  years,  any  lands,  tenements,  or  hereditaments  which  may 

4  be  necessary  for  the   said  road,    or  the   appurtenances 

5  thereof,  or  for  the  erection  of  depositories,  store  houses, 

6  houses  for  the  officers,   servants  or  agents  of  the  com- 

7  pany,  or  for  workshops  or  foundries,  to  be  used  for  the 

8  said  company,  or  for  procuring  stone  or  other  materials 

9  necessary  for  said  company  in   the  construction  or  re- 

10  pairs  of  the  road,  or  for  effecting  transportation  thereon, 

11  and  for  no  other  purposes. 

XXVI.  Be  it  further  enacted,    That  the  company   shall 

2  have  the  right,  when  necessary,  to  construct  the  said 

3  road  across  or  along  any  public  road  or  water  course  ; 

4  Provided,  That  said  company  shall  not  obstruct   any 

5  public  road,  without  constructing  another  equally  as 

6  convenient  and  good. 


58 


XXVII.  Be  it  further  enacted,  That  when  any  lands  or 

2  right  of  way  may  be  required  by  said  company  for  the 

3  purpose  of  constructing  their  road,  and  for  the  want  of 

4  agreement   as  to  the  value  thereof,  or  from  any  other 

5  cause,  the  same  cannot  be  purchased  from  the  owner  or 

6  owners,  the  same  may  be  taken  at   a  valuation  to  be 

7  made  by  five  commissioners,  or  a  majority  of  them,  to 

8  be  appointed  by  any  Court  of  record  having  common 

9  law  jurisdiction  in  the  county  where  some  part  of  the 

10  land  or  right  of  way  is  situated.     In    making  the  said 

11  valuation,  the  said  commissioners   shall  take  into  con- 

12  sideration  the  loss  or  damage  which  may  accrue  to  the 

13  owner  or  owners  in  consequence  of  the  land  or  right  of  . 

14  way  being  surrendered,  and  the  benefit  and  advantage  he » 

15  she  or  they  may  receive  from  the  erection  or  establish- 

16  ment  of  the  railroad  or  work,  and  shall  state  particularly 

17  the  value  and  amount  of  each  ;  and  the  excess  of  loss  and 

18  damage,  over  and  above  the  advantage  and  benefit,  shall 

19  form  the  measure  of  valuation  or  right  of  way ;  Provided* 

20  Nevertheless,  that  if  any  person  or  persons  over  whose 

21  land  the   road  may   pass  shall  be   dissatisfied  with   the 

22  valuation  of  said  commissioners-  then,  and  in  that  case 

23  the  person  or  persons  so  dissatisfied  may  have  an  appeal 

24  to  the  Superior  Court,  in  the  county  where  the  said  valua- 

25  tion  has  been  made,  or  in  either  county  in  which  the  land 

26  lies,   when  it   may  lie  in  more  than  one  county,  under 

27  the  same  rules,  regulations  and  restrictions  as  in  appeals 

28  from  judgments  of  Justices  of  the  Peace.     The  proceed- 

29  ings  of  the  said  commissioners,  accompanied  with  a  full 

30  description  of  said  land  or  right  of  way,  shall  be  returned, 

31  under  the  hands  and  seals  of  a  majority  of  the  commis- 

32  sioners   to   the   Court   from  'which    the    same   issuedj 

33  there  to  remain  a  matter  of  record.     And  the  lands    or 

34  right  of  way  so  valued  by  the  said  commissioners,  shall 

35  vest  in  said  company  so  long  as  the  same  shall  be  used 

36  for  the  purposes  of  said  railroad,  so  soon  as  the  valua- 

37  tion  may  be  paid,  or  when  refused,  may  have  been  ten- 


59 


38  dered  ;  Provided,  That,  on  application  for  the  appoint- 
89  ment  of  commissioners,  under  this  section,   it  shall  be 

40  made  to  appear  to  the  satisfaction  of  the  Court,  that  at 

41  least  ten  days   previous  notice  has  been  given  by    the 

42  applicant  to  the  owner  or  owners  of  land  so  proposed  to 

43  be  condemned,  or  if  the  owner  or  owners  be  infants  or 

44  non  compos  mentis,  then  to  the  guardian  of  such  owner 

45  or  owners,   if  such  guardian  can  be  found  within   the 

46  county,  or  if  he  cannot  be  so  found,  then  such  appoint- 

47  ment  shall  not  be  made  unless  notice  of  the  application 

48  shall  have  been  published  at  least  one  month  next  pre- 

49  ceding,  in  some  newspaper  printed  as  convenient  as  may 

50  be  to  the  Court  House  of  the  county,   and  shall  have 

51  been  posted  at  the  door  of  the  Court  House,  on  the  first 

52  day  at  least  of  the  term  of  said  Court,  to  which  the  ap- 

53  plication  is  made  ;   Provided  further,  That  the  valua- 

54  tion  provided  for  in  this  section  shall  be  made  on  oath 

55  by  the  commissioners  aforesaid,  which  oath  any  Justice 

56  of  the  Peace  or  Clerk  of  the  Court  of  the  county  in 

57  which  the  land  or  a  part  of  it  lies,  is  hereby  authorized 

58  to  administer ;   Provided  further.  That  the  right  of  con- 

59  demnation  hereby  granted  shall  not  authorise  the  said 

60  company  to  invade  the  dwelling  house,  yard,  garden  or 

61  burial  ground  of  an  individual  without  his  consent. 

XXVIII.   Be  it  further  enacted,  That  the  right  of  said 

2  company  to  condemn   in  the  manner  described  in  the 

3  27th  section  of  this  act,  shall  extend  to  the  condemn- 

4  ing  one  hundred  feet  on  each  side  of  the  main  track  of 

5  the  road,  measuring  from  the  centre  of  the  same,  unless 

6  in  case  of  deep  cuts  and  filling,  when  the  said  company 

7  shall  have   power   to  condemn  as   much  in  addition 

8  thereto,   as  may  be  necessary  for  the  purpose  of  con- 

9  structing  said  road ;   and  the  company  shall    also   have 

10  power  to  condemn  any  appropriate  lands  in  like  manner, 

11  for  the  constructing  and  building  of  depots,  shops,  ware- 

12  houses,  buildings  for  servants,  agents  and  persons  em- 


60 

13  ployed  on  the  road,  not  exceeding  two  acres  in  any  one 

14  lot  or  station. 

XXIX.  Be  it  further  enacted,    That,  in  the  absence  of 

2  any  contract  or  contracts  with  said  company,  in  rela- 

3  tion  to  lands  through  which  the  said  road  or  its  branches 

4  may  pass,  signed  by  the  owner  thereof,  or  by  his  agent, 

5  or  any  claimant  or  person  in  possession  thereof,  which 

6  may  be  confirmed  by  the  owner  thereof,  it  shall  be  pre- 

7  sumed  that  the  land  upon  which  the  said  road  or  any  of 

8  its  branches  may  be  constructed,  together  with  one  hun- 

9  dred  feet  on  each  side  of  the  centre  of  the  said   road, 

10  has  been  granted  to  the  said  company,  by  the  owner  or 

11  owners  thereof ;   and  the  said  company  shall  have  good 

12  right  and  title   thereto,   and  shall   hold  and  enjoy  the 

13  same  as  long  as  the  same  shall  be  used  for  the  purposes 

14  of  said  road  and  no  longer,  unless  the  person  or  persons 

15  owning  the  said  land  at  the  time  that  part  of  the  said 

16  road  which  may  be  on  the  said  land,  was  finished  ;  or 

17  those   claiming  under  him,  her  or  them,  shall  apply  for 

18  an  assessment  of  the  value  of  said  lands,  as  hereinbefore 

19  directed,  within  two  years  next  after  that  part  of  the  said 

20  road,  which  may  be  on   the  said  land,  was  finished  : 

21  and  in  case  the  said  owner  or  owners  or  those  claim - 

22  ing  under  him,  her  or  them,  shall  not  apply    within 

23  two    years   next   after  the   said    part    was   finished, 

24  he,  she  or  they  shall  be  forever  barred  from  recovering 

25  said  land,  or  having  any  assessment  or   compensation 

26  therefor :  Provided,  That  nothing  herein  contained  shall 

27  affect  the  rights  of  feme  coverts  or  infants,  until  two 

28  years  after  the  removal  of  their  respective  disabilities. 

XXX.  Be  it  further  enacted,   That  all  lands  not  hereto- 

2  fore  granted  to  any  person,  nor  appropriated  by  law  to 

3  the  use  of  the  State,   within  one  hundred  feet  of  the 

4  centre   of  the  road,  which  may  be  constructed  by  t  he 

5  said  company,  shall  vest  in  the  company  as  soon  as  the 

6  line  of  the  road  is   definitely  laid  out  through  it,  and 

7  any  grant  of  land  thereafter  shall  be  void. 


61 

XXXI.  Be  it  further  enacted,    That  if  any  person  or 

2  persons   shall   intrude  upon  the  said  railroad  by  any 

3  manner  of  use  thereof,  of  the  rights  and  privileges  con- 

4  nected  therewith,   without   permission   or  contrary  to 

5  the  will  of  the  said  company,  he,  she  or  they  may  be 

6  indicted  for  misdemeanor,  and  upon  conviction  may  be 

7  fined  and  imprisoned  by  any  Court  of  competent  juris- 

8  diction  in  this  State, 

XXXII.  Be  it  further  enacted,  That  if  any  person  shalj 

2  wilfully  and  maliciously  destroy,  or  in  any  manner  hurt 

3  or  damage,  or  obstruct,  or  shall  wilfully  and  maliciously 

4  cause  or  aid,  or  assist  or  counsel,  or  advise  any   other 

5  person  or  persons  to  destroy,  or  in  any  manner  to  hurt, 

6  damage  or  destroy  or  injure  or  obstruct  the  said  railroad, 

7  or  any  bridge  or  vehicle  used  for,  or  in  transportation 

8  thereon,  any  water  tank,  warehouse,  or  any  other  prop. 

9  erty  of  said  company,  such  person  or  persona  so  offending 
10  shall  be  liable  to  be  indicted  therefor,  and  on  convic 
11'  tion,  shall   be   imprisoned   not   more  than  six,  nor  less 

12  than   one   month,    and  pay  a  fine  not  exceeding  five 

13  hundred  dollars,  nor  less  than  twenty  dollars,  at  the  dis- 

14  cretion  of  the  Court  before  which  said  conviction  shall 

15  take  place ;  and  shall   be   further  liable  to  pay  all  ex- 

16  penses  of  repairing  the  same ;  and  it  shall  not  be  compe- 

17  tent  for  any  person,  so  offending  against  the  provisions 

18  of  this  clause,  to  defend  himself  by  pleading  or  giving  in 

19  evidence,  that  he  was  the  owner,  agent  or  servant  of 

20  the  land  where  such  destruction,  hurt,  damage,  injury, 

21  or  obstruction  was  done,  at  the  time  the  same  was  done 

22  or  caused  to  be  done. 

XXXIII.   Be  it  furiher  enacted,  That  every  obstruction 

2  to  the  safe  and  free  passage  of  vehicles  on  the  said  road 

3  or  its  branches,  shall  be  deemed  a  public  nuisance,  and 

4  may  be  abated  as  such  by  any  officer,  agent  or  servant 

5  of  said  company ;   and  the  person   causing  such  ob- 


62 


6  struction  may  be  indicted  and  punished  for  erecting  a 

7  public  nuisance. 

XXXIV.  Be  it  is  further  enacted,  That  the  said  com- 

2  pany  shall  have  the  right  to  take  at  the   store   houses, 

3  erected  by  them   on  the  said  railroad,  or  connected 

4  therewith,    or  on   its  branches,    goods,    wares,    mer- 

5  chandise  and  produce  intended  for  transportation,  pre- 

6  scribe  ihe  rules  of  priority  and  charge,  and  receive  such 

7  just  compensation  for  storage,  as  they  by  rules,  may  es- 

8  tablish,  (which   they  shall  cause  to  be  published)  or  as 

9  may  be  fixed  by  agreement  with  the  owner,  which  may 

10  be  distinct  from  the  rates  of  transportation  :    Provided, 

11  That  the  said  company  shall   not  charge   or  receive 

12  storage  on  goods,  wares,  merchandise,  or  produce  which 

13  may  be  delivered   to  them  at  their   regular  deposito- 

14  ries  for   immediate  transportation,  and  which  the  said 

15  company  may  have  power  to  transport  immediately. 

XXXV.  Be  it  further  enacted,   That  the  profits  of  the 

2  company,  or  so  much  thereof  as  the  general  board  may 

3  deem  advisable,  shall,  when  the  affairs  of  the  company 

4  will  permit,  be  semi-annually  divided  among  the  stock- 

5  holders  in  proportion  to  the  stock  each  may  own. 

XXXVI.  Be  it  further  enacted,   That,  whenever  it  shall 

2  appear  to  the  board  of  internal  improvements  of  this 

3  State,  by  a  certificate  under  the  seal  of  said  company, 

4  signed  by  their  treasurer  and  countersigned   by  their 

5  president,  that  one-third  has  been  subscribed  for  and  ta- 

6  ken,  and  that  at   least  five   hundred  thousand   dollars 

7  has  been  paid  to  said  treasurer  in  cash  and  in  labor  per 

8  formed  on  said  road,    and  accepted  by  said  company, 

9  as  payment  on  the  stock  subscribed,  the  said  board   of 

10  internal  improvements  shall  be,   and  they  are  hereby 

11  authorized  and  required  to  subscribe,  on  behalf  of  the 

12  State,  for  stock  in  said  company  to  the  amount  of  two 


63 


1.3  millions  of  dollars  to  the  capital  stock  of  said  company, 

14  and  the  subscription  shall  be  paid  in  the  following  man- 

15  ner,  namely  :   The  one-fourth  part  as  soon  as  the  said 

16  company  shall  commence  work,  and  one-fourth  thereof 

17  every  six  months  thereafter,  until  the  whole  subscription 

18  on  behalf  of  the  State  shall  be  paid  in;    Provided,  the 
lO  treasurer  and  president   of  said  company  shall,  before 

20  they  receive  the  aforesaid  instalments,  satisfactorily  as- 

21  sure  the  board  of  internal  improvements,  by  the  certifi- 

22  cates,  under  the  seal  of  said  company,  that  an  amount  ot 

23  private  subscription  has  been  paid  in  equal  proportion  to 

24  the  stock  subscribed  by  the  State. 

XXXVII.  Be  it  further  enacted  That  if,  in  case  the  pres- 

2  ent  Legislature  shall  not  provide   the  necessary  and 

3  ample  means  to  pay  the  aforesaid  stock  subscribed  for  on 

4  be  half  of  the  State,  as  provided  for  in  the  36th  section 
5>  of  this  act,  and  in  that  event,  the  board  of  internal  im- 

6  provements  aforesaid,  shall,  and  they  are  hereby  autho- 

7  rised  and  empowered  to   borrow,   on  the  credit  of  the 

8  State,  a  sum  not  exceeding  two  millions  of  dollars,  as 

9  the  same  may  be  needed  by  the  requirements  of  this  act. 

XXXVIII.  Be  it   further  enacted  That,  if,   in  case  it 

2  shall  be  necessary  to  borrow  the   money   by  this  act 

3  authorized,  the  public  treasurer  shall  issue  the  necessa- 

4  ry  certificates,  signed  by  himself  and  countersigned  by 

5  the  comptroller,  in  sums  not  less    than   one  thousand 

6  dollars  each,  pledging  the  State  for  the  payment  of  the 

7  sum  therein  mentioned,  with   interest  thereon   at  the 

8  rate  of  interest  not  exceeding  six  per  cent,  per  annum, 

9  payable   semi-annually  at  such  times  and  places  as  the 

10  treasurer  may   appoint — the  principal  of  which  certifi- 

11  oates  shall  be  redeemable  at  the  end  of  thirty  years 

12  from  the   time  the  same  are  issued ;  but  no  greater 

13  amount  of  such  certificates  shall  be  issued  at  any  one 

14  time  than  may  be  sufficient  to  meet  the  instalments  re- 

15  quired  to  be  paid  by  the  State  at  that  time. 


64 


XXXlX,    B".   if   further   enacted,    That  the  comptroller 

2  shall  register  the  said  certificates  at  lame  in   a  book  to 

3  be  by  him  kept  for  the  purpose,  at  the  time  he  counter- 

4  signs  the  same  ;  and  when  he  delivers  the  same  to  the 

5  public  Treasurer,  he  shall  charge  him  in  his  books  with 

6  the  amount  thereof,  and  also  with  all  such  sums,  if  any, 

7  as  the  public  Treasurer  may  obfain  by  way  of  premium 

8  on  the  sale  of  said  certificates,    an   account  of  which 

9  the  public  Treasurer  shall   render   to  the   Comptroller 

10  so  soon  as    negotiations  from  time   to  time  for  the  sale 

11  of  said  certificates  are  closed. 

XL.  Be  it  further  enacted,  That  if  it  shall  become  ne- 

2  cessary  to  issue  the  certificates    aforesaid,    the  public 

3  Treasurer  shall  advertise  in  one   or  more  newspapers, 

4  as  he  may  think  best,    and  invite  sealed  proposals  for 

5  such  amount  of  the  aforesaid  sum  of  two  millions  of  dol- 
0  lars  as  may   be  wanted  at  any  one  time  ;    and  it   shall 

7  be  his  duty  to  accept  tho^e  terms  which  ma}T  be  most 

8  advantageous    to  the  State  ;   Provided,   That   in  no 

9  event  shall  any  of  the  said  certificates  be  sold  for  less 

10  than  their  par  value  ;    and  any  premium  which  may  be 

11  obtained  on  the  sale  of  said  certificates  shall  be  placed 

12  in  the  public  Treasury,  and  used  as  other  public  funds 

13  in  the  payment  of  interest  on  the  debt  hereby  created. 

XLI.   Be  it  further  enacted,  That,  as  security  for  the  re- 

2  demption  of  said  certificates  of  debt,  the  public  faith  of 

3  the  State  of  North   Carolina  is   hereby  pledged  to  the 

4  holders  thereof,  and  in  addition  thereto,   all  the  stock 

5  held  by  the  State  in  "  the  North  Carolina  and  Western 
G  Railroad  Company,"  hereby  created,  shall  be.  and  the 

7  same  is  hereby,  pledged  for  that  purpose  ;  and  any  divi- 

8  dends  of  profit  which  may,  from  time  to  time,  be  declared 

9  on  the  stock  held  by   the  State,   as  aforesaid,   shall  be 

10  applied  to  the  payment  of  the  interest  accruing  on  said 

11  certificates ;  but  until  such  dividend  of   profit  may  be 


12  declared,  it  shall  be  the  duty  of  the  Treasurer,  and  he  is 

13  hereby  authorized  and  directed  to  pay  all  such  interest, 

14  as  the  same  may  accrue,  out  of  any  moneys  in  the  treas- 

15  ury  not  otherwise  appropriated. 

XLII.  Be  it  further  enacted,  That  the  certificates  oi  debt 

2  hereby  authorized  to  be  issued,   shall  be  transferable  by 

3  the  holders  thereof,  their  agents  or  attorneys,  properly 

4  constituted,  in  a  book  to  be  kept  by  the  Publie  Treasu- 

5  rer  for  that  purpose ;  and  in  every  instance  when  a  trans- 

6  fer  is  made,  the  outstanding  certificate  shall  be  surren- 

7  dered  and  given  up  to  the  Public  Treasurer,  and  by  him 

8  cancelled,   and  a  new  one  for  the  amount  issued  in  its 

9  place,  to  the  person  to  whom  the  same  is  transferred. 

XLIII.  Beit  further  enacted,  That  the  State  shall  appoint 

2  a  number  ol  Directors  in  said  company  in  proportion  to 

3  the  stock  subscribed,  who  shall  be  appointed  by  the  Gov- 

4  ernor,  by  and  with  the  advice  and  consent  of  the  council 

5  of  State,  and  removed  in  like  manner. 

XLIV.    Be  it  further  enacted  That  the  following  offi- 

2  cers  and  servants  and  persons  in  the  actual  employment 

3  of  the  said  company,  be,  and  they  are  hereby  exempted 

4  from  the  performance  of  jury  and  ordinary  military 

5  duty :    The  president  and   treasurer  of  the  board  of 

6  directors,  and  the  chief  and  assistant  engineers,  the  secre- 

7  taries  and  accountants  of  the  company,  keepers  of  the 

8  depositories,  guard  stationed  on  the  road  to  protect  it 

9  from  injury,  and  such  persons  as  may  be  working  the 

10  locomotive  engines  and  travelling  with  cars  for  the  pur- 

11  pose  of  attending  to  the  transporting  of  produce,  goods 

12  and  passengers  on  the  road. 


